From ‘Big Bang’ to Incremental Changes to the 1987 Philippine Constitution
More than three decades after its adoption, the Constitution of the Philippines remains unamended. President Duterte’s plans to comprehensively reform the constitution and restructure the state into a federation have not materialised. The attention has therefore shifted towards piecemeal amendment proposals. Whether this incremental approach will deliver the first successful amendments to the Philippine Constitution is far from certain. The piecemeal proposals would constitute to some form of regional autonomy but fall short of a fully-fledged federal arrangement – writes Prof Maria Ela L. Atienza.
Rodrigo Duterte began his campaign for the presidency in 2016 with a promise to overhaul the 1987 Constitution, including a shift to a federal system. When he assumed office, he and his supporters promised a federal charter in one or two years. However, the draft charter prepared by the Consultative Committee he created and appointed by Executive Order, was not endorsed by the two Houses of Congress, nor by all cabinet ministers and agencies. In fact, the House of Representatives passed its own version of a draft federal constitution that removed many of the progressive provisions in the draft of the Consultative Committee. Without Senate support, Congress failed to pass a draft federal constitution before it closed in early 2019.
In November 2018, President Duterte established an Inter-Agency Task Force, with the Secretary of the Department of Interior and Local Government (DILG) as chair and the Secretary of the Department of Justice as vice chair, to rescue the reform drive. The Task Force is mandated to host intergovernmental consultations, coordinate efforts towards garnering consensus and make palatable changes to the draft of the Consultative Committee. The May 2019 midterm elections saw Duterte-supported candidates winning a majority of the seats but with no clear indication that the push for charter change will revive with renewed vigour. Meanwhile, the Inter-Agency Task Force is conducting consultations and has submitted initial amendment proposals to the House.
A divided and unsupportive Congress
During his third State of the Nation Address (SONA) in July 2018, Duterte endorsed the Bayanihan Constitution drafted by the Consultative Committee which proposed a federal system of government. However, his own economic team, concerned with the cost of the proposed change, were unsupportive of the proposal and there was low public awareness and support for the reform initiatives. In the House of Representatives, former President and House Speaker Gloria Macapagal Arroyo and her allies introduced their own version of a new federal constitution. The House version removed many progressive aspects of the draft Bayanihan Constitution.
Notably, the House removed provisions on term limits on members of Congress, bans or limits on political dynasties, and reforms to strengthen political parties and make elections more representative and participatory. The House version proposes a presidential-federal set-up with the president and vice president elected together, for a four-year term (down from six) with one reelection (up from no re-election). Members of the bicameral Congress would be elected for a four-year term, and the two consecutive term limits for Senators and three consecutive term limits for House Representatives would be removed. The draft does not impose a specific number of regional states to be established. Instead, following a similar process in Spain, a state would be formed based on a petition addressed to Congress from a number of contiguous, compact, and adjacent local governments.
The House of Representatives passed their draft constitution overwhelmingly until third reading, despite attack from critics and even members of the Consultative Committee. Meanwhile, the draft lacked support in the Senate, with senators allied to Duterte saying there was simply no time to discuss it because of other priorities and approaching midterm elections.
Towards piecemeal amendment proposals
During the May 2019 mid-term elections, candidates allied with Duterte won overwhelmingly in the Senate, House of Representatives, and local government offices. There were fresh hopes from supporters of charter change that the shift to federalism and charter change will be given a fresh push.
However, before the President delivered his fourth State of the Nation Address in 2019, his former Department of Budget and Management Secretary and now Central Bank Governor, Benjamin Diokno, once again voiced his ambivalence towards a shift to a federal form of government and its potentially negative impacts on the economy. The key window of opportunity for constitutional change, the first half of the president’s term, has already lapsed. With presidential re-election not permitted, incumbents’ influence often wanes in the second half of the first and last term.
Several factors militate against comprehensive constitutional change.
Several other factors militate against comprehensive constitutional change. Analysts have pointed to difficulties of shifting to federalism – Duterte’s flagship proposal — given the limited time available in his presidency, lack of consensus even within the administration about charter change, the loss of momentum as a result of the passage and approval in a plebiscite of the Bangsamoro Organic Law which created a new and strengthened Bangsamoro Autonomous Region in Muslim Mindanao, the lack of public awareness and support, and the fact that even Duterte’s allies in Congress already have their sights on the 2022 presidential elections.
In his State of the Nation Address in July 2019, the President did not even mention charter change or federalism. In a press conference immediately after the Address, the President indicated that a shift to federalism might not be feasible during his term and that perhaps the focus should be on amendments that would, as he said, ‘change this nation’. However, like most of his pronouncements on policy preferences, the President did not elaborate on what these specific amendments are. He simply noted that his allies cannot agree yet on the suggested provisions and they should first discuss among themselves before presenting a final draft to the public. Allies of the President said that what he meant are provisions that would address corruption and huge economic disparities between regions.
Reforming the Senate and economic liberalisation
Attempts for comprehensive constitutional reform have largely subsided. Instead, efforts have focused on piece-meal reform proposals. In particular, the Committee on Constitutional Amendments of the House of Representatives held public hearings in September 2019 on several constitutional amendment proposals from members of the House. The Inter-Agency Task Force was invited to present their proposals as well.
In terms of institutional reforms, the main proposals from House Representatives contained in separate bills and proposed resolutions filed by individual members relate to changing the constituencies from which senators are elected from national to regional. Currently, the powerful Senate has 24 members, half of whom are elected every three years by all Filipino voters. This is a rare process of selecting senators without parallels elsewhere in the world. The proposed amendment seeks to create regional connections with senatorial candidates and could enhance regional representation, in a manner comparable to the representation of constituent units in federations.
A proposed amendment would change the constituency for election of senators from national to regional, in a manner comparable to the representation of constituent units in federations.
Relatedly, the proposed amendments would reduce the term of the senators from six to four years and allow senators to run for three, rather than two, terms (which would maintain the total twelve-year limit for individual senators). The term of the members of the House of Representatives would be increased from three to four (or five years). There is also a proposal to increase the term of elected local councils from three to four years. The House bills do not explicitly state the reasons for such proposed changes. But as can be recalled from the comments of Allan Peter Cayetano who is now House Speaker before the opening of the new Congress, extending the term of House members to four or five years is practical and will make them more productive. The three years term is not long enough to concentrate on legislative work as during the second half of the second year, legislators are already preparing for the next elections.
Most of the other proposals focus on liberalizing the economic provisions to achieve greater economic growth. Accordingly, the proposed amendments would allow Congress to establish exceptions to restrictions on who can be partners of the state in co-production, joint venture or production in relation to exploration, development, and utilization of natural resources, which currently favours Filipino citizens. Furthermore, legislative exceptions would also be permitted to restrictions that reserve certain economic activities to citizens of the country or corporations and associations with at least 60 percent of capital owned by citizens. The proposed amendments would also create exceptions where the law may ease restrictions on the use of publicly owned land. Similar limitations on administrative control of educational institutions that favour at least 60 percent Filipino ownership as well as full Filipino control and administration, respectively, would also be eased. The proposals would also allow Congress to create exceptions to the restricted access to ownership and management of the media and advertising sector. Current rules favour full Filipino ownership, and mandate only Filipino citizens or corporations or associations with at least 70 percent capital owned by Filipinos to engage in the advertising industry and restrict participation of foreign investors in the governing body of entities in the advertising industry.
Under current proposals on process, Congress would convene as a Constituent Assembly to approve any draft amendments, rather than a directly elected constitutional convention.
Another proposal under discussion would limit the requirement for the approval of the Commission on Appointment for Members of the Armed Forces of the Philippines (AFP) for presidential appointments to positions of Chief-of-Staff of the AFP and service commanders of the army, air force, and navy only, rather than for all officers of the armed forces from the rank of colonel or naval captain as it currently stands. The reason stated by Magdalo Party-List Representative Manuel Cabochan III in his proposed joint resolution is that the current appointment process has unfortunately led to the political polarization of the AFP as military officials chosen to be promoted are often forced to play politics and give in to the desires of politicians to ensure that their appointments or promotions will not be unduly blocked. The proposal is aimed at insulating the AFP from partisan politics and political connections.
There appears to be no urgent counterpart bills in the Senate seeking to change the Constitution.
In terms of process, there is a new proposed resolution in the House calling for members of Congress to convene as a Constituent Assembly, rather than the election of a separate constitutional convention to discuss and approve constitutional amendments. Under the proposed resolution authored by Rep. Aurelio Gonzales, Jr., it is not clear if the House and Senate would sit separately in considering and approving the proposed amendments. However, in the other bills and proposed joint resolutions, there was mention that each House will be voting separately on the proposed amendments. Voting of the two chambers in a constituent assembly had been a contentious issue in the previous Congress when then House Speaker Pantaleon Alvarez insisted that the two Houses of Congress should vote as one. However, when Alvarez was removed and replaced by Macapagal Arroyo, she and her allies agreed that in case Congress convenes as a constituent assembly, each House will be voting separately. This is a concession to the Senate which has a much smaller number of members whose votes would be discounted if the two houses sat in a joint session.
There are currently no proposed amendments discussed by the House Committee on Constitutional Amendments related to strengthening political parties, preventing turncoatism (crossing the aisle), and preventing or limiting political dynasties.
Meanwhile, there appears to be no urgent counterpart bills in the Senate seeking to change the Constitution.
From federalism to merely enhanced regional autonomy
Nevertheless, the Inter-Agency Task Force is conducting consultations and proposing significant changes to the draft of the Consultative Committee as a basis to garner broad consensus. In the forum ‘Prospects for Reforms in the 1987 Constitution: A Critical Analysis’ organised on 3 October 2019 by the DILG and the Development Academy of the Philippines, DILG Undersecretary Jonathan Malaya noted that the Inter-Agency Task Force on Federalism and Constitutional Reform has not yet agreed on a draft constitution. Nevertheless, broad consensus has emerged on certain constitutional reform proposals, which were presented to the House Committee on Constitutional Amendments upon the request of House Committee Chair Rufus Rodriguez during the September hearings discussed above.
Specifically, in the first package of proposed reforms agreed by the Inter-Agency Task Force and presented to the House Committee on Constitutional Amendments, there is a proposal to constitutionalize the recent Supreme Court decision that mandates that shares of national income that would be given to local government units (LGUs) would not just be collections of the Bureau of Internal Revenues but all government agencies’ collections. This would contribute to enhancing the financial autonomy and capacity of LGUs.
Undersecretary Malaya also added that there is agreement that there should be a review of the Local Government Code’s distribution of the internal revenue allotment (IRA) formula which favours cities that already have their own large revenues. The Task Force recommends that IRA allocation should be on the basis of need as well as certified performance, i.e. those that are given the Seal of Good Local Governance for outstanding local governments based on certain standards.
It is not clear if the House Committee has agreed to sponsor the proposed amendments presented by the Inter-Agency Task Force.
Another proposed amendment to the Constitution would transform regional development councils into regional development authorities with their own budgets and the power to implement regional development plans, instead of their current mandate that is merely recommendatory. These proposals represent a move reflecting features of a federal arrangement. There has also been agreement on the proposed amendments empowering Congress to authorise exceptions to restrictions on ownership in the economic provisions.
The DILG Undersecretary also said that the Inter-Agency Task Force is now working on the next package of constitutional reforms. This will be composed of proposals to strengthen political parties, prevent turncoatism, and ban political dynasties. He admitted, though, that the anti-dynasty proposal is contentious and there are still ongoing debates within the Task Force.
Malaya also noted that they have dropped the term ‘chacha’ (for charter change), in favour of a new label or ‘brand’ for their constitutional reforms campaign: CORE (for constitutional reform). He admitted that the Task Force decided to focus on ‘surgical reforms’ and a shift to a federal form is no more the primary focus, considering the lack of agreement even among government agencies. However, he is confident that a draft constitution would be ready by December 2019. He is also confident that federalism is still the long-term goal and that the reforms pursued now will pave the way for that eventual change.
Malaya did not elaborate if the House Committee has agreed to sponsor all these proposed amendments presented by the Inter-Agency Task Force during the Committee hearings.
More than three years under President Duterte, promises of charter change and federalism with a short timeline have not been delivered. Questions remain on whether the set of ‘surgical’ amendments or a new draft constitution will be delivered before the year ends. After more than three decades, the Constitution of the Philippines remains one of the few constitutions in the world without any successful amendments. Whether the shift towards incremental reform efforts would change this track record is far from certain.
Even if the piecemeal proposals would be adopted, they would fall short of a fully-fledged federal arrangement. Nevertheless, some of the proposals of the Inter-Agency Task Force would hopefully enhance levels of regional autonomy and could therefore go far towards addressing some of the perceived governance challenges the Philippines currently faces. However, any genuine attempt to amend the charter may be spoiled by rifts within the administrative team of the president, personalistic interests of legislators, presidential ambitions of senators who are allies of the president, the president’s own diminishing support for federalism as he reaches the end of his term, and public approval.
Professor Maria Ela L. Atienza is Chair of the Department of Political Science, University of the Philippines, Diliman.